Lampedusa is emblematic for “The Other Euro Crisis”. The number of people who seek sanctuary in the European Union and the life-threatening extent to which they go for refuge render it necessary to revisit our Common European Asylum System with due regard to the New Year’s special: The Recast Dublin Regulation (Dublin III). “A brave new world or a lipstick on a pig?” that is the question.

Towards a Common European Asylum System (CEAS)

At the summit in Tampere (1999) the European Council agreed to formalize the cooperation in the area of asylum by establishing the CEAS, “based on the full and inclusive application of the Geneva Convention”, including the principle of non-refoulement that prohibits asylum seekers to be returned to a territory where they are subjected to existential threats. Until 2005 the harmonisation efforts yielded important fruits: The Dublin Convention of 1990 (Dublin I) became a regulation (Dublin II) and formed together with the Eurodac regulation the so-called Dublin system. The latter legislation allowed to fingerprint asylum applicants above the age of 14 in their first country of entry which was responsible for the examination of their asylum claim and to which other contracting states could transfer them back (Dublin transfer). Moreover, a series of directives regulating conditions on reception, qualification and procedure were adopted. On top of that, the SOLID Funds under the general programme Solidarity and Management of Migration Flows, containing external border funds, refugee funds, return funds and funds for integration of third-country nationals, consolidated the asylum scheme.
However, asylum policy outcomes continued to diverge substantively across Europe. As measured by economic power and population size, the UNHCR revealed that in the period of 2008-2012 21,7 asylum claims per 1000 inhabitants were made in Malta. In the meanwhile only 2,4 claims per 1000 inhabitants were made in Germany, marginally less than the average claims ratio in the EU which was 2,6 per 1000 inhabitants. Equally discrepancies surfaced in grants of protection in terms of the applicants’ nationalities. In 2012, more than 90% of Iraq asylum seekers were granted a temporary residential permit in Italy, whereas in Greece less than 3% obtained a similar status.

As a response to the persisting defaults of the envisaged CEAS the member states concluded the European Pact on Immigration and Asylum in 2008, as a prelude to the second phase of the integration process in this sensitive policy area. The European Asylum Support Office in Malta was thus newly established, furthermore, all the cornerstone legislations were revised. The transposition period for the qualification directive ended before last Christmas, whereas member states still have time to translate the reception and procedure directives into national legislation until summer 2015. Both the regulations of the Dublin System are in force since January 1st, 2014, however, the recast Eurodac regulation is only applicable upon the expiration of the transposition period of the aforementioned directives.

The Constant and Collateral Changes in Dublin III

Basically Dublin III has preserved the core principle of allocating the responsibility for asylum claims among contracting states (EU member states, Iceland, Norway and Switzerland): The state where the asylum seeker has arrived first is the competent authority. By all means, a responsible state has to be nominated within 11 months and responsible states have to take back designated people (Dubliners) within 9 months. The country of entry has the sole prerogative not only to grant refugee protection but also any sort of subsidiary protection, thus Dublin transfers can no longer be hindered by a new application for temporary protection in the sending member state.

But the asylum seeker has now the right to be heard in a personal interview where the person can invoke legitimate grounds against any transfer, such as claiming family ties in the country of residence (Humanitarian clause). For minors the responsibility definitely lays with the state where their family lives, in their absence the country of residence is in charge of them. Besides the sending member state has to inform the party concerned in a timely manner about all the implications of the planned Dublin transfer. Hence, it needs to provide the right to lodge an appeal with suspensive effect, guaranteeing the right to remain pending the court’s decision. Setting tight or loose deadlines to do so, however, is largely at the discretion of the sending member state. Then again, applicants are better protected against arbitrary detention, henceforth, only the severe risk of absconding can justify arrest. Finally, an early warning mechanism is established to detect and solve root causes for disruptive national asylum systems facing particularly severe migratory pressures.

Dublin III or Dublin 0.3 a Defaulted Beta-Version?

By linking the responsibility for the asylum application to a single state, the Dublin system targets on the one hand the so-called refugees in orbit no authority from any state comes forward to deal with, hence forcing the asylum seeker to continue his journey requesting for refuge for too long. On the other hand, it is meant to preclude asylum shopping, a perceived threat of multiple applications of asylum seekers in order to prolong their stay in the EU. These irregular movements are considered as ‘free’ acts of pursuing economic prosperity rather than seeking safety, hence refuge as enshrined in the Geneva Convention. The idea of security penetrates the whole Dublin system. The Union’s Constitutional Treaties declared all member states to be safe on the basis of their adhesion to the Geneva Convention, thus all sending member states can trust ‘in solidarity’ that the receiving member state will treat the transferred applicant adequately. Yet, it is indispensable to emphasize that Dublin transfers do not take place within a closed system confined to the Union’s external borders. Member states can indeed send applicants to a third-country -of origin or transit- they do consider as safe. So far there is no common list of safe third-countries applying across Europe.

Under the premise that the Union is a safe haven, sending member states are reluctant to question the security situation in a fellow state - fearing political conflicts. The blind trust completely ‘depoliticizes and de-dramatizes’ (Kivistö 2013) the Dublin system reducing it to a common procedural policy. The actual asylum application is not addressed at all. Dubliners are thus forced to adopt an apolitical rhetoric to escape the relocations, for example, instead of complaining about the asylum scheme in the country of entry, their expert representatives would put forward non-political, therefore considered as more credible and legitimate, arguments such as health issues preventing them from travelling. Only in very few cases both the European Court of Human Rights and the Court of Justice of the EU have overtly accused member states of human rights violations concerning their asylum procedures, exempting for instance Greece from the Dublin system. Sending member states are thus likely to become accomplices by disregarding the persisting divergences in asylum policies. In principle they can also refrain from exerting the Dublin rule and assume the responsibility under the sovereignty clause. Despite the underlying human rights rhetoric, asylum responsibility is undoubtedly considered as a burden, though. A disproportionate burden on the Border States, notably Southern states “that are already buckling under crippling austerity measures” (Langfold 2013:217), is further enhanced by the static Dublin system. The revised European asylum regime reflects nothing but the scope of the common political will to change this system.

In a nutshell, the Dublin norm was there before the idea of a CEAS and runs through its establishment process like a golden thread. It still authorises in principle transfers of asylum applicants to their country of entry. Dubliners are given rights to defend themselves, however, the likelihood for a successful appeal is minimal, once they were spotted in the Eurodac file. The recast Dublin regulation like the former one exposes the presumption that a fully-fledged CEAS with converged asylum policy standards is already built, thus asylum applicants have equal chances for success across Europe. Thereby, it neglects the realpolitik. National asylum policies still diverge essentially according to the state’s economic power, absorption capacity, perception of ‘safety/safe third-country’ and other factors. Certainly the norm has a bias to burden particularly border countries like Greece and Italy that require steadfastly effective burden-sharing provisions. As the Greek presidency of the Council of the EU will be followed by the Italian presidency in the second semester, 2014 promises to be an exciting year for further updating the CEAS.